Constitutional Questions and the Administrative State

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Scholars explore questions about how agencies shape and are shaped by the U.S. Constitution.

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The U.S. Constitution provides for three discrete branches of government: Congress, the executive branch, and the judiciary. Each branch fulfills a constitutionally unique role and exercises checks and balances on the others. But what about the administrative agencies that make up the so-called fourth branch of government, whose actions often look like those taken by the other branches?

In the Fall of 2018, the University of Pennsylvania Law Review held its annual symposium, entitled “The History, Theory, and Practice of Administrative Constitutionalism.” Scholars use the term “administrative constitutionalism” to refer to the interrelated issues of administrative agencies’ role in interpreting, implementing, and transforming constitutional law; the tools that presidents, legislators, judges, and everyday citizens use to control agencies’ constitutional creativity; and the administrative state’s constitutionality. At the symposium, legal scholars debated topics including the origins of the administrative state, its constitutional underpinnings, and how administrative constitutionalism is understood by legal practitioners.

In conjunction with the University of Pennsylvania Law Review‘s publication of its symposium issue and Law & History Review’s related publication, The Regulatory Review has developed a series of essays from the symposium’s participants on questions of administrative constitutionalism. Both the symposium and this series would not be possible without the help of Sophia Lee of the University of Pennsylvania Law School, who played a pivotal role in organizing the symposium.

The Regulatory Review invited panelists to continue the conversations begun at the symposium. Contributors to this series from the panels on “Debating Administrative Constitutionalism in Theory and in Practice” are Cary Coglianese, a law professor at the University of Pennsylvania Law School and director of the Penn Program on Regulation; Lucas Guttentag, a law professor at Yale Law School and Stanford Law School; and Peter S. Margulies, a law professor at Roger Williams University School of Law. Contributors from the panel on “Debating the Constitutionality of the Administrative State” are: Gillian E. Metzger, a law professor at Columbia Law School; Jon D. Michaels, a law professor at the University of California, Los Angeles School of Law; Joseph Postell, a professor at the University of Colorado at Colorado Springs; and Michael Rappaport, a law professor at the University of San Diego School of Law.

Administrative Constitutionalism’s Lessons

December 16, 2019 | Gillian E. Metzger, Columbia Law School

The picture that would seem to emerge from today’s litigated disputes is one of a national administrative state that is fundamentally at odds with the U.S. Constitution and a dire threat to individual liberty. It is all the more important, then, to have a symposium devoted to identifying the important constitutional functions that administrative government has long performed.

A Constitutional Defense of the Administrative State

December 17, 2019 | Jon D. Michaels, UCLA School of Law

There are two principal sets of challengers to the modern administrative state today: those who see the modern administrative state as a threat to or an affront to the constitutional separation of powers, and those who are more or less at peace with the modern administrative state as a constitutional matter but are nevertheless deeply distressed by the highly bureaucratized administrative state in the United States, one that they view as hopelessly inefficient, rigid, and unresponsive.

A Stronger Separation of Powers for Administrative Agencies

December 18, 2019 | Michael Rappaport, University of San Diego School of Law

In recent years, modern administrative agencies have increasingly come under attack for violating the traditional separation of powers under the U.S. Constitution. Defenders of modern agencies argue that the traditional separation of powers is not feasible in the modern world of big government. But it is possible to have most of the benefits of the traditional separation of powers and still operate the large government programs of the administrative state.

Reform Congress to Rein in the Administrative State

December 19, 2019 | Joseph Postell, University of Colorado at Colorado Springs

It is possible to have regulation without embracing the administrative state. In fact, that is how America was governed for over a century after the framing of the Constitution. Reducing the legitimacy gap of administrative state would require a legislature capable of addressing the challenges of the 21st Century by amassing expertise, engaging in deliberation, and responding efficiently to the sense of the national majority.

Six Degrees of Delegation

December 23, 2019 | Cary Coglianese, University of Pennsylvania Law School

The U.S. administrative state rests on a constitutional doctrine that is widely considered to have died or to have been improperly abandoned over the last eight decades. But when understood to rely on a dimensional understanding of lawmaking authority, the nondelegation doctrine actually makes surprising sense—and remains as alive as ever.

Reflections on Bureaucratic Barriers to Immigration Reform

December 24, 2019 | Lucas Guttentag, Yale Law School and Stanford Law School

Although the threshold challenge for a new administration is to determine its policies and priorities, the key to actually achieving meaningful reform will depend on the harder task of overcoming bureaucratic inertia and implementing new policies. That will be even more difficult than usual because of the norm-breaking practices of the current administration and the whiplash effect of reversing recently adopted measures.

Street Level Administrative Constitutionalism

December 25, 2020 | Peter S. Margulies, Roger Williams University School of Law 

Administrative constitutionalism—the label given to constitutional interpretations made by or within government agencies—need not entail policy memoranda from senior or even mid-level officials. Sometimes, it takes place in the trenches. The work matters, however, both because of the people it helps and because of street-level administrative constitutionalism’s ability to keep alive a vision of more responsive government.